Much as racism evaporated on Election Day 2008, Elena Kagan's confirmation means that women in law need to shut up and stop complaining about discrimination and hostile work environments. That's the actual, no-reduction-necessary argument being made right now.

A Senate vote of 63-37 has confirmed President Obama's nomination of Elena Kagan to the…
Read more Read more

It all started when Slate's advice columnist received a letter from a law student working at a firm. At the firm working adjacent to hers, an attorney "often makes comments to me about my appearance. These range from annoying but harmless ("Nice tan") to creepy ("I like that skirt," in a lecherous tone). I have tried to ignore him or subtly indicate his comments aren't welcome, but neither approach has worked."

She also described overhearing conversations in which men insulted each other by using the words "fag" and "homo," and being reluctant to speak to a partner about it, lest it make her "look like a little girl running to a man to fight my battles. I'm also considering documenting all [the neighboring attorney's] comments until I have enough for a sexual harassment suit so I can make his firm pay for the legal education I used to nail it."

Advertisement

Now, there are clearly some issues with taking to court a firm that you don't even work for. But did that justify "Prudie" from lambasting the letter-writer with more ire reserved for, say, the lawyers making her feel uncomfortable?

"If you tell a judge that getting the compliment 'I like that skirt' made you unable to discharge your own legal duties, the conclusion may be that you need to find another line of work, not that the firm of Blowhard, Homophobe & Creep owes you a tuition check," she wrote. She recommended speaking politely and directly to the neighboring attorney — fair advice — and only taking it to a partner if the situation escalated. And then there was this:

As for the frat boys next door—get a sound-blocking headset if you must. Yes, their comments are repugnant, but you don't want to be the Carrie Nation of your floor. Let's hope this is resolved one day when a client of the firm who doesn't share their sensibilities overhears the office banter.

It's not that legal action is necessarily the solution to this woman's issues, particularly given her lack of status at the firm, but there is something, well, repugnant to the snide way in which she's being told that she's being a moralist prig who should tune it all out.

At Above The Law, David Lat chimed in, with a headline designed to drum up controversy ("Do Women In The Law Need To Get Thicker Skins?") and this helpful opening:

Today's confirmation of Elena Kagan as the fourth woman ever to serve on the U.S. Supreme Court is a milestone worth celebrating. For ladies in the law, things are looking up.

But female law students and lawyers still have complaints.

Lord. Will they ever stop yawling?

Lat continues, "If workplace complaints from women lawyers focus these days on uncouth remarks by men, perhaps it's because the worst of sexism is in the past... Being a woman is arguably more of an asset than a liability within the law today. So far, President Obama has picked only women for the Supreme Court." His other evidence is the personal experience and recommendations of female judge who in 1992 recommended that women stop making a big deal out of every comment, and to use their feminine wiles to get ahead.

Let's go back to "the worst of sexism is in the past." It's true that we've come a long way since Ruth Bader Ginsberg was told she had to justify taking a man's place in her law school class. And if you read certain articles — some of them written by colleagues of Prudie! — you could start to believe that women have long since taken over and men are weakly trying to catch up.

Is economic and social change fast disadvantaging men, creating a female-dominated society?
Read more Read more

Another thing you could read is, you know, some empirical studies. Such as the one recently blogged about by Lat's Above The Law colleague Elie Mystal, which found that the wage gap between top female corporate lawyers and their male counterparts is $66,000. As Newsweekdescribed it, "The biggest contributing factors, according to the study's authors... include stereotyping, gender bias, and even bullying and intimidation."

And just yesterday, a study was released that included a survey of 1,425 women in federal law practice. The aim of the study's authors was to see whether gender harassment, which they defined as ‘‘a broad range of verbal and nonverbal behaviors not aimed at sexual cooperation but that convey insulting, hostile, and degrading attitudes about women'' had similar harmful effects on women as unwanted sexual advances — or any harmful effects at all. This is what they found:

Can you be "gender harassed" — i.e., subject to discrimination — in the workplace without …
Read more Read more

Compared to their non-harassed counterparts, gender-harassed women reported significantly higher levels of job stress. They also described less satisfaction with their relationships with federal judges, other attorneys in the federal court, and court personnel... We found that gender-harassed women attorneys fared just as poorly as those who had experienced sexual advance harassment.

Also:

Our outcome results suggest that harassment exclusively consisting of gender-related hostility has adverse work-related correlates. That is, the more that women experienced gender harassment, the less satisfied they were with their jobs and colleagues, the more they experienced stress on the job, and the more they suffered health problems that detracted from their job performance.

Clearly, the solution for this is for these highly-educated women to just suck it up and stop letting the asshole behaviors around them affect their job performance or happiness! And to be yelled at by bloggers that it's all in their imagination because discrimination doesn't exist! Wait, what?